JAGANNATH DHARA Vs. BANKIM CHANDRA DHARA

JUDGEMENT

(1.) Heard the learned advocates for the parties. This revisional application is directed against an order dated 16.1.2001 passed in Title Appeal No. 123 of 1992 thereby allowing the application under section 5 read with section 14 of the Limitation Act filed by the defendant/opposite party No. 1.

(2.) Evidently, the suit for partition filed by the plaintiff/petitioner was decreed ex parte in preliminary form. The said opposite party filed an application under Order 9 Rule 13 of the Code for setting aside the said ex parte decree. The said application which was registered as J. Misc. Case No. 56 of 1987, was again dismissed on the failure of the said opposite party to take steps. Another application under Order 9 Rule 4 CPC was filed for restoration of the aforesaid J. Misc. Case No. 56 of 1987 along with an application for condonation of delay. Though the said Misc. Case was registered upon condonation of delay but the same was dismissed on contest on the merits of the same. The said order of dismissal was challenged in revision in this Court. This Court by it's judgment dated 7.4.92 affirmed the said order of dismissal of the petition under Order 9 Rule 4 of the Code as above, but observed that the right of the petitioner to move against the ex parte decree according to law and to get relief thereunder if so entitled in law would not be any way affected.

(3.) Consequent upon such observation, the defendant/opposite party No. 1 preferred a regular appeal against the said ex parte decree and thereafter made an application for condonation of delay in filling the appeal under the provisions of section 5 read with section 14 of the Limitation Act. The learned Court of appeal below in view of the aforesaid observation by the Division Bench of this Court held that the defendant opposite party is entitled to the benefit of relief against the said ex parte decree by preferring an appeal irrespective of limitation caused in the meantime.